Alberto Gonzales: Voting Rights Laws 'Have to Be Reasonable'

This is TELL ME MORE from NPR News. I'm Celeste Headlee. Michel Martin is away. We're going to spend a large part of the program today talking about voting rights. The Justice Department is persisting in its pushback on Texas voting laws. That's despite a U.S. Supreme Court decision that limited the federal enforcement power of the Voting Rights Act. Attorney General Eric Holder argues the state has a recent track record of discrimination and that justifies continued federal oversight. Here's a little bit of his recent remarks at the National Urban League Conference in Philadelphia.

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ERIC HOLDER: My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found. But let me be very clear, these remaining tools are no substitute for legislation that must fill the void left by the Supreme Court's decision.

HEADLEE: Joining us now to talk about voting rights in Texas and the Justice Department strategy is former U.S. Attorney General Alberto Gonzales. Welcome back to the program.

ALBERTO GONZALES: It's good to be back.

HEADLEE: You have supported the recent Supreme Court decision, and that was to do away with preclearance, the requirement that states, if you have a history of discrimination, get federal approval before they make changes to their voting laws. But you also say that you support using other pieces of the Voting Rights Act to protect minority voting rights. How does Eric Holder's strategy here fit into the way you think the Voting Rights Act should be enforced?

GONZALES: Well, I think the primary, or the most important aspect of the Voting Rights Act is Section 2, which prohibits states from discriminating based upon race. That still is in place. And irrespective of what, of this action by General Holder and the Department of Justice, the department could have relied upon Section 2 in enforcing or protecting the voting rights of minorities. In this particular case, General Holder and the Department of Justice has made a calculation that they want to use Section 3. There's not much history, quite frankly, not many court cases relating to Section 3.

And the reason for that is fairly obvious, in that we've had Section 5. Section 5 has been a very important enforcement tool for the Department of Justice. Section 5 relies, to a large degree, upon Section 4, which is a formula which determines which states have to get permission before they make changes in voting laws. Before the decision, there was something like, I think, 15 or so states. All the states or parts of the states had to get permission from the Department of Justice or from a federal court in D.C. before making a change in voting. But the determination of which jurisdictions were subject to that preclearance requirement was based upon a formula in Section 4.

And Section 4, according to the Supreme Court, was based upon data which was like 40 years old and was outdated, and the court made a determination that before Congress could infringe upon the very important authority of states to decide how they're going to run elections within their boundaries, there have to be, you know, compelling reasons and it's going to be, it has to make sense. And the court determined that formula, which was based upon data which was 40 years old, just did not make sense and did not pass Constitutional muster.

HEADLEE: Well, let me go into something that may make sense, 'cause Attorney General Eric Holder says there is a common-sense reason why they need to continue to oversee Texas' voting rights decisions. There are two main court battles going on in Texas right now. One concerns voter ID law, the other is about redistricting.

Just this past year, a federal court ruled Texas lawmakers intentionally discriminated against minority voters in redrawing their district boundaries, and their language was pretty strong. They say the attempt to minimize the power of minority voters could not have happened by accident. There was even one district shaped like a lightning bolt. Doesn't that constitute a reason to oversee Texas?

GONZALES: I'm not suggesting that the department should not take advantage of the Voting Rights Act when they see racial discrimination in the voting context. That opportunity, or that authority, still existed irrespective of the decision in the Shelby case. They could have brought an action under Section 2 of the Voting Rights Act. They could have alleged a Constitutional violation under Article 14 or Article 15 of the Constitution.

No, I think I agree that the Department of Justice has an obligation, when they believe that voting rights are being infringed based upon race, that's unlawful, and they have an obligation to enforce the law and to enforce the Constitution. And the question is, what is the best way to do that? In the past, it was much easier to enforce civil rights laws under Section 5. It was prospective. It gave the department an opportunity to step in, to weigh in, before a law actually took, went into effect. Now Section 2 was still available. Section 3 was available.

But those are much harder for the department, because what it does, it requires the department to wait until the laws are actually passed. They go into effect, and the department has to go in and show that, in fact, the intent of the law was to discriminate based upon race. The standard is much easier under Section 5, and that's why the decision in the Shelby case was extremely important in terms of civil rights enforcement.

HEADLEE: If you're just joining us, we're talking about voting rights in Texas with former Attorney General Alberto Gonzales. I imagine that if you're not very familiar with the Voting Rights Act, some of what we're saying in terms of different sections and the lot could be confusing to people. Let me try to break it down just a little bit. The Supreme Court struck down a provision which basically said these particular states have a history of discrimination, and therefore they will pretty much, in perpetuity, be under the oversight of the Department of Justice when it comes to changing their voting rights.

The Supreme Court struck that down, basically said, you can't profile these states. You need to deal with what's happening right now. So explain to me, for example, in the case of Texas, in which the Department of Justice says they have seen evidence of discrimination, when it comes to both redistricting and voter ID laws. How then do you suggest that the Department of Justice prosecute that? Is it only through the courts? Does this now mean the Voting Rights Act enforcement belongs to our legal system only?

GONZALES: Well, of course, I mean, the courts do have the final say with respect to everything, including the enforcement of civil rights. And, you know, the department has always had the opportunity and the authority to go in after the fact. And so what the department is doing here is going to the courts again. It sounds to me like they want to, sort of, take federal oversight of the election system in Texas, which I suppose a federal court could order.

I remember at one time it was federal oversight of the entire prison system in the state of Texas. And it sounds to me like that's really what Eric Holder and the department is asking a federal judge to do is to, based upon past discrimination by the state of Texas, that the judges, federal judges should give the Department of Justice sort of oversight authority over election decisions made within the state for a period of time. Whether or not judges are going to agree with that, I don't know. That remains to be seen. Again, there's a lot of uncertainty about Section 3 and the scope of Section 3 and the discretion of judges in interpreting Section 3, so a lot of unanswered questions here. I think we'll have to wait and see what happens in the courts.

HEADLEE: Eric Holder, not surprisingly, is being criticized by Republicans for being overly partisan. Texas Governor Rick Perry said in his statement that Holder's comments show the administration's contempt for the Constitution. But Holder has responded by saying the issue of voting rights transcends partisanship. Would you agree with that?

GONZALES: Oh, no question about it. And let me be very clear about this, you know, I think that the protection of voter rights is very, very important, but the right to vote is not absolute in this country. You can impose various restrictions. They have to be reasonable restrictions. For example, if you're a felon, you can't vote. If you're not of age, you cannot vote. I, for one, happen to believe it makes sense to have voter identification in order to vote.

I understand, I believe states should make voter IDs readily available. If people can't afford to get one somehow, the states need to make accommodations for people that are poor and for the elderly. But I think voting is such an important thing that people should take an extra effort to go out and get a photo ID, because it's important and they need to have that, quite frankly, to, I think, to live comfortably in this life. You can't enter certain buildings, you can't buy certain things without photo identification, so I don't have a problem with photo identification. However, I do have a problem if those requirements are used to discriminate, to intimidate or discourage voter participation in voting.

HEADLEE: How do you see this debate? I mean, obviously, voter ID, in light of the many voter ID laws that have come up before state legislatures, it's a pretty controversial topic. How do you see this finally getting settled? Will it get settled by the Supreme Court? Or is this something that Congress will have to act on?

GONZALES: Well, voter identification laws have already been found to be constitutional in 2008, a decision in Indiana in an opinion written by Justice John Paul Stevens, who's viewed as fairly liberal. And he found that voter identification laws are, in fact, constitutional. But they have to be reasonable. And again, if they're being used in a way to intimidate or to discriminate or to discourage minority voters from voting, that's not allowable. But that is already in place.

I think the best outcome here is for Congress to pass legislation to update the formula in Section 4. That then makes Section 5, once again, enforceable, and the Department of Justice has the preclearance authority that it had before the Shelby case. Now, unfortunately, because of the politics that exist in this country, you know, I'm not very optimistic that Congress is going to pass a law to update the formula in Section 4.

HEADLEE: Which leaves us with just the courts. It leaves us just pretty much litigating every single challenge.

GONZALES: Well, that's right. That's right. But again, even before the decision in Shelby, it was not necessary for the state of Texas, for example, to seek administrative preclearance from the Department of Justice. They had, every covered jurisdiction had the opportunity and the authority to ignore the Department of Justice and seek judicial preclearance from a special court in Washington, D.C.

Now the problem with that, of course, it's more expensive. It's more time-consuming. And so, for the most part, most covered jurisdictions would seek administrative preclearance from the Department of Justice.

HEADLEE: To try to make it a little faster, although that's not necessary now, as we mentioned before. That has been struck down by the Supreme Court. It's going to be interesting to follow where it goes. And I appreciate your coming in to help us understand a little of what's going on.

Alberto Gonzales is the former Attorney General of the United States. He also served as White House Counsel during the administration of George W. Bush. He joined us from Nashville, where he now teaches law at Belmont University. Thank you so much.